The Worth of War (21 page)

THE END OF THE MADISONIAN SOLUTION

Unfortunately, several developments during the last quarter century have weakened and frayed, though not yet cut, the constitutional leashes and muzzles fashioned by Mr. Madison. These include the expansion of unilateral presidential war powers, making it more difficult for America's system of checks and balances to operate effectively, and the advent of forms of military engagement that reduce the mobilizational effects of war.

As to the first of these, a statute enacted in 1947 began the construction of the unilateral presidency and the erosion of Congress's role
in military affairs. The was the 1947 National Security Act, which reorganized the military services by separating the air force from the army and abolishing the historic division between the War Department and Navy Department. All three military branches were now placed within a single National Military Establishment, later renamed the Department of Defense (DoD), under the leadership of a civilian cabinet officer—the secretary of defense. The 1947 act also created the Central Intelligence Agency (CIA) to coordinate the government's activities in the realms of information gathering, espionage, and covert operations. Finally, the act established the National Security Council (NSC), chaired by the president and including the major cabinet secretaries, the chairman of the Joint Chiefs of Staff, the three service secretaries, and a number of other high-ranking officials. The NSC was to assist the president in coordinating national security planning and decision making. Taken together, the 1947 National Security Act created the basis for what later critics would call the “imperial presidency.”

Presidential Control of the Military

To begin with, the 1947 act was an important step in the professionalization of the military services and their subjection to presidential control. America's military effort had historically depended upon state militias, which often answered as much to governors, senators, and members of Congress as to the president. During the Civil War, for example, many politicians secured gubernatorial commissions in state militia units and through them, as well as through the state governors, Congress frequently sought to interfere with Lincoln's military plans. Presidential control of the military was enhanced at the beginning of the Spanish–American war when Congress passed the 1898 Volunteer Act. Under its terms, the general officers and their staffs of all state militia units, now renamed the National Guard, were to be appointed by the president rather than the state governors. The 1903 Dick Act further increased presidential control of the nation's military forces by
authorizing the president to dissolve state guard units into the regular army in times of emergency, while the 1916 National Defense Act gave the president authority to appoint all commissioned and noncommissioned guard officers in time of war. The 1916 act also began the creation of the national military reserves, which eventually supplanted the state units as the force employed to fill out the military's ranks in time of emergency.
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While these pieces of legislation gradually gave the president and the military brass in Washington fuller control over what originally had been primarily state forces, the long-standing division of the military into two cabinet departments—War (army) and Navy—had undermined presidential control. Historically, each of the services, as well as branches within the services, most notably the Marine Corps and, more recently, the Army Air Corps, had their own ties to supporters in the Congress and used these to circumvent their nominal superiors. For example, during the First World War, the Marine Corps mobilized its allies in Congress to induce the president to accept their participation in the American expeditionary force over the objections of the secretary of war, the secretary of the navy, and General Pershing, the force's commander.
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In a similar vein, between the wars, some lawmakers became enchanted with the idea of military aviation and supported General Billy Mitchell's quixotic crusade against the War and Navy departments. Over the objections of the president and the secretary of war, Congress enacted the 1926 Air Corps Act, which made the air corps a virtually autonomous entity within the army.
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Even more important, the War Department and the Navy Department presented Congress with separate budgets and competing visions of the nation's military needs and priorities. The annual struggle for funding between the two service branches, complete with competing testimony by the nation's foremost military authorities, opened the way for increased congressional intervention into military decision making.

The 1947 National Security Act created a single secretary of defense responsible for all defense planning and the overall military budget. As amended in 1949, the act diminished the status of the individual
service secretaries, who were no longer to be members of the president's cabinet or the National Security Council. Instead, the individual service secretaries were to focus on manpower and procurement issues and to report to the secretary of defense and his assistant secretaries. To further centralize military planning, the 1949 amendments created the position of Chairman of the Joint Chiefs of Staff (JCS) to denote the officer who was to serve as the principle military advisor to the defense secretary and the president. By creating a more unified military chain of command and a single defense budget, the National Security Act diminished Congress's ability to intervene in military planning and decision making and increased the president's control over the armed services and national security policy.

In 1948, under the auspices of the first secretary of defense, James Forrestal, the chiefs of the three military services met at Key West and negotiated a set of agreements on missions and weapons that were expected to mute inter-service squabbles and the congressional intervention that inevitably ensued. For several years, some resistance to the newly centralized military regime manifested itself within the services. The eventual result, though, was a clear chain of command with the president at the top and Congress out of the loop.

Intelligence and Planning

In addition to centralizing military decision making, the 1947 National Security Act increased the White House's capacities for foreign policy and security planning, intelligence gathering and evaluation, and covert intelligence operations. The first of these results stemmed from the creation of the National Security Council. The council itself was never more than a loose-knit presidential advisory body and seldom had any independent influence. Beginning during the Kennedy presidency, however, the NSC staff became an important presidential instrument. Truman and Eisenhower relied upon the State Department's policy planning staff and the JCS staff for policy analysis and advice.

These groups, however, did not work directly for the president and
had other institutional loyalties. Kennedy expanded the NSC staff and designated McGeorge Bundy, an Ivy Leaguer and former intelligence officer, to serve as his special assistant for national security affairs and head of the NSC staff. During subsequent presidencies, the NSC staff—eventually consisting of nearly two hundred professional employees organized in regional and functional offices, along with the national security assistant—became important forces in the shaping of foreign and security policy, often eclipsing the State Department and its leadership. For example, when he served as Richard Nixon's national security assistant, Henry Kissinger effectively excluded the secretary of state, William Rogers, from most foreign policy decision making. Similarly, during the Carter administration, the president allowed his national security assistant, Zbigniew Brzezinski, to marginalize Secretary of State Cyrus Vance. Both Rogers and Vance eventually resigned.
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The construction of a national security bureaucracy within the executive office of the president made possible the enormous postwar expansion of presidential unilateralism in the realm of security and foreign policy. Beginning with Truman, presidents would conduct foreign and security policy through executive agreements and executive orders and seldom negotiate formal treaties requiring Senate ratification. Presidents before Truman—even Franklin D. Roosevelt—had generally submitted important accords between the United States and foreign powers to the Senate for ratification, and had sometimes seen their goals stymied by senatorial opposition. Not only did the Constitution require senatorial confirmation of treaties, but before Truman, presidents had lacked the administrative resources to systematically conduct an independent foreign policy. It was not by accident that most of the agreements—particularly the secret agreements—negotiated by FDR concerned military matters where the president could rely upon the administrative capacities of the War and Navy departments.
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The State Department's policy planning staff—and especially the NSC staff—created the institutional foundations and capabilities upon which Truman and his successors could rely to conduct and administer
the nation's foreign and security policies directly from the oval office. For example, American participation in the International Trade Organization (ITO), one of the cornerstones of US postwar trade policy, was based on a sole executive agreement, the GATT Provisional Protocol, signed by President Truman after Congress delayed action and ultimately failed to approve the ITO charter.
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Truman signed some 1,300 executive agreements and Eisenhower another 1,800, in some cases requesting congressional approval and in other instances ignoring the Congress. Executive agreements take two forms: congressional–executive agreements and sole executive agreements. In the former case, the president submits the agreement to both houses of Congress as he would any other piece of legislation, with a majority vote in both houses required for passage. This is generally a lower hurdle than the two-thirds vote required for Senate ratification of a treaty. A sole executive agreement is not sent to the Congress at all. The president generally has discretion over which avenue to pursue. All treaties and executive agreements have the power of law, though a sole executive agreement cannot contravene an existing statute.
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During the Truman and Eisenhower presidencies, barely two hundred treaties were submitted to the Senate as stipulated by Article II of the Constitution.
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The same pattern has continued to the present time. Indeed, two of the most important recent international agreements entered into by the United States, the North American Free Trade Agreement and the World Trade Organization agreement, were confirmed by congressional executive agreement, not by treaty.
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Indeed, it is worth noting that in recent years, through a combination of executive orders and institutional changes, presidents have been able to sharply reduce congressional authority in the realm of trade policy. The 1934 Reciprocal Trade Agreements Act gave the president expanded authority to negotiate trade agreements with other countries and reduced Congress's ability to interfere with or reject such presidential agreements. In 1974, similar authority was granted to the president to negotiate the reduction of non-tariff barriers under so-called “fast track” procedures, which limit congressional power to overturn presidential
decisions.
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The 1974 Trade Act also expanded the role of the US Trade Representative (USTR), an office originally authorized by Congress in 1962 and established by President Kennedy via executive order in 1963. The USTR has enhanced the institutional ability of the White House to set the nation's overall trade policy agenda, often relegating Congress to the task of vetoing specific measures within a larger plan—a reversal of the constitutionally mandated relationship between the two branches.

In a similar vein, the policy planning staff and NSC opened the way for policy making by executive order in the areas of security and foreign policy. Executive orders issued to implement presidents' security policy goals have been variously called National Security Presidential Directives (NSPD) and National Security Decision Directives (NSDD), but are most commonly known as National Security Directives or NSDs. These, like other executive orders, are commands from the president to an executive agency.
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Most NSDs are classified, and presidents have consistently refused even to inform Congress of their existence, much less their content. Generally, NSDs are drafted by the NSC staff at the president's behest. Some NSDs have involved mundane matters, but others have established America's most significant foreign policies and security postures. As mentioned above, NSD 68, developed by the State Department's policy planning staff prior to the creation of an NSC staff, set forward the basic principles of containment upon which American Cold War policy came to be based. A series of Kennedy NSDs established the basic principles of American policy toward a number of world trouble spots.
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Ronald Reagan's NSD 12 launched the president's massive military buildup and force modernization program, while his NSD 172 began the development of an antimissile programs. Thus, the creation of new administrative capabilities gave presidents the tools through which to dominate foreign and security policy and to dispense with Congress.

Presidential power was further augmented in the 1947 act by the creation of the CIA, which became a centrally important presidential foreign policy tool. The CIA gave the president the capacity to
intervene in the affairs of other nations without informing Congress or the public. At the president's behest, the CIA undertook numerous covert operations and clandestine interventions in foreign countries during the Cold War and afterward. The agency's covert operations branch was established by a top secret presidential order, NSD 10-2, issued in June 1948. These operations were to include propaganda, economic warfare, sabotage, subversion, and assistance to underground movements.